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Why Justice Thomas Should Speak at Oral Argument

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Why Justice Thomas Should Speak at Oral Argument :+<-867,&(7+20$66+28/'63($.$725$/ $5*80(17 ∗ 'DYLG$.DUS , ,1752'8&7,21 ,, 7+(9$/8(2)25$/$5*80(17 ,,, 7+(6281'2)6,/(1&( ,9 7+(())(&72)6,/(1&( 9 ³0<&2//($*8(66+28/'6+8783´ $ 'HFRUXP % /LVWHQLQJ & .HHSLQJDQ2SHQ0LQG ' %URDGHQLQJWKH'HEDWH ( 'LPLQLVKLQJ+LV6WDWXUH 9, 7+(32:(52):25'6 9,, &21&/86,21 ,,1752'8&7,21 7KHRUDODUJXPHQWEHIRUHWKH8QLWHG6WDWHV6XSUHPH&RXUWLQ0RUVHY )UHGHULFNEHJDQDWDPLQW\SLFDOIDVKLRQOLNHDKLJKVSHHGJDPH RIFKHVV)RUW\WZRVHFRQGVLQWRWKHDUJXPHQW-XVWLFH$QWKRQ\.HQQHG\ FXWRIIWKHDGYRFDWHLQPLGVHQWHQFH)RUWKHQH[WKRXUDQGWHQPLQXWHV WKH-XVWLFHVLQWHUUXSWHGWKHODZ\HUVWLPHV-XVWLFH6WHSKHQ%UH\HUD IRUPHUODZSURIHVVRUSRVHGDPXOWLSDUWK\SRWKHWLFDO-XVWLFH5XWK%DGHU ∗ -'8QLYHUVLW\RI)ORULGD/HYLQ&ROOHJHRI/DZ%$<DOH8QLYHUVLW\)RU 0DULVDZKRMRLQHGPHRQWKLVDGYHQWXUH$OVRWKDQNVWR3URIHVVRUV6KDURQ5XVKDQG0LFKDHO 6HLJHODQGWR$QQ+RYH&DUROLQH0F&UDHDQG%HQ³=LJJ\´:LOOLDPVRQIRUWKHLUFORVHUHDGLQJRI WKLV1RWH 6&W 6HH7UDQVFULSWRI2UDO$UJXPHQWDW0RUVH6&W 1R .(9,10(5,'$ 0,&+$(/$)/(7&+(56835(0(',6&20)2577+(',9,'('628/2) &/$5(1&(7+20$6 +HDU5HFRUGLQJRI2UDO$UJXPHQWRQ0DU0RUVH6&W 1R DYDLODEOHDWKWWSZZZR\H]RUJFDVHVBBDUJXPHQW ,G ,GVHH0LFKDHO'R\OH:LUH6HUYLFH5HSRUW7UDQVFULSWV*LYHD*OLPSVHLQWR0DQ\ -XVWLFHV¶ 3HUVRQDOLWLHV 0&&/$7&+< 1(:63$3(56 0D\ DYDLODEOH DW :/15 GHVFULELQJ -XVWLFH %UH\HU DV ³SDLQIXOO\ SURIHVVRULDO´ DQG ³WKH PRVW YHUERVH RI WKH 612 FLORIDA LAW REVIEW [Vol. 61 Ginsburg, a civil procedure scholar, asked about a key detail in the record;7 Justice Antonin Scalia’s rejoinders drew laughs from the audience.8 The Court wrestled during the argument with the reach of a student’s First Amendment right to unfurl a banner at a school-sponsored, off- campus event.9 Yet, during the hour-long exchange, no Justice questioned the basic premise that students retain some First Amendment rights at school.10 However, when the Court issued its opinion, Justice Clarence Thomas in a concurrence announced an extraordinary position: that the First Amendment does not apply at all to students.11 He wrote that the Court should overrule the leading precedent, Tinker v. Des Moines Independent Community School District,12 which has remained good law for thirty-eight years. Justice Thomas’ conclusion surely surprised the parties. None had briefed the issue, and Justice Thomas had not asked them about it during oral argument. In fact, Justice Thomas rarely utters a word from the bench.13 Since justices” who has “unleashed nearly 35,000 words during oral arguments since January [of 2007]”); see also Jeffrey Toobin, Breyer’s Big Idea: The Justice’s Vision for a Progressive Revival on the Supreme Court, NEW YORKER, Oct. 31, 2005, at 36 (“Tall, thin, and nearly bald, he radiates nervous energy, rubbing his head as he puzzles over questions, and, in sessions at the Supreme Court, rocking in his leather chair—sometimes pitching so far forward that his chin almost rests on the bench.”). 7. Hear Recording of Oral Argument on Mar. 19, 2007, Morse, 127 S. Ct. 2618 (No. 06- 278), available at http://www.oyez.org/cases/2000-2009/2006/2006_06_278/argument/. Justice Ginsburg taught civil procedure for seventeen years, and enjoys speaking and writing about the subject. See Tony Mauro, Seers Forecast Authors of Supreme Court Opinions, 160 N.J. L.J. June 12, 2000, at 8, 8 (“If one of the pending cases involves civil procedure, Ginsburg might be the justice to bet on; she likes the subject.”); Jeffrey Rosen, The New Look of Liberalism on the Court, N.Y. TIMES, Oct. 5, 1997, § 6 (Magazine), at 60. 8. Hear Recording of Oral Argument, Morse, 127 S. Ct. 2618 (No. 06-278), available at http://www.oyez.org/cases/2000-2009/2006/2006_06_278/argument/; see also Jay D. Wexler, Laugh Track, 9 GREEN BAG 2D 59, 60 (2005) (“Justice Scalia won the competition by a landslide, instigating 77 laughing episodes, while Justice Thomas instigated zero laughing episodes . .”). 9. Transcript of Oral Argument at 49–58, Morse, 127 S. Ct. 2618 (No. 06-278). 10. Id. at 3–4. Kenneth Starr, the school district’s attorney, argued that the Court could rule for the school without altering Tinker. Id.; see also Brief for Petitioner at 25, Morse, 127 S. Ct. 2618 (No. 06-278). 11. Morse, 127 S. Ct. at 2630 (Thomas, J., concurring). 12. 393 U.S. 503 (1969). 13. A range of commentators have noted Justice Thomas’ silence at oral argument. See MERIDA & FLETCHER , supra note 3, at 309 (“Those who come to the Supreme Court to listen to oral arguments for the first time are often struck . by Thomas’ nonparticipation. His silence has become one of his signature characteristics as a justice and a subject of ongoing fascination . .”); Guy-Uriel E. Charles, Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits?, 93 GEO. L.J. 575, 610 (2005) (“Justice Thomas’ comments during oral argument in Black are noteworthy both because he rarely asks questions during oral arguments and because of the impact those comments had on his colleagues.”); Scott D. Gerber, Justice Clarence Thomas: First Term, First Impressions, 35 HOW. L.J. 115, 128 (1992) (“[A]lthough Justice Thomas generally asked few questions during oral argument, such reserve was not present in his writing.”); David G. Savage, 2009] JUSTICE THOMAS AT ORAL ARGUMENT 613 2004, when oral argument transcripts began identifying Justices by name,14 Justice Thomas has made just eleven comments15—while sitting through more than 400 hours of argument.16 He asked his last question on February 22, 2006, more than three years ago.17 Yet, rarely has a Justice said so little but had so much to say. As Professor Erwin Chemerinsky wrote: “Justice Thomas is the most radical member of the current Supreme Court, and likely one of the most radical justices in history in his desire to overrule precedent and dramatically change the law.”18 Justice Thomas’ jurisprudence would revolutionize constitutional law, overturning precedents in areas of criminal procedure, the Takings Clause, reproductive rights, First Amendment rights, and the separation of church and state, among other areas.19 This Note argues that Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process—and weakens the legitimacy of the far-reaching conclusions, like those in Morse, that Justice Say the Right Thing, 83 A.B.A. J. 54, 55 (1997) (“Only Justice Clarence Thomas is silent on the bench. Roughly once per term, he asks a question during oral arguments. Still, Thomas’ studied silence prompts lots of speculation. With his passive expression and long gazes at the ceiling, he looks out of place amid his engaged and animated colleagues.”); Dahlia Lithwick, Op-Ed., Personal Truths and Legal Fictions, N.Y. TIMES, Dec. 17, 2002, at A35 (“Many of us in the courtroom were surprised simply at the sound of his voice; he speaks only four or five times a year, less often than most of his colleagues speak during an average morning.”). 14. Press Release, Supreme Court of the United States, Oral Argument Transcripts (Sept. 28, 2004), http://www.supremecourtus.gov/publicinfo/press/pr_09-28-04.html. 15. Since the Court began identifying justices by name in transcripts on October 4, 2004, Justice Thomas has spoken in four cases. See Transcript of Oral Argument at 43, Holmes v. South Carolina, 547 U.S. 319 (2006) (No. 04-1327); Transcript of Oral Argument at 46, Rice v. Collins, 546 U.S. 333 (2006) (No. 04-52); Transcript of Oral Argument at 30, 51–52, Georgia v. Randolph, 547 U.S. 103 (2006) (No. 04-1067); Transcript of Oral Argument at 38, Veneman v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) (No. 03-1164). 16. For cases argued from the October Term 2004 to the October Term 2006, see GEORGETOWN UNIVERSITY LAW CENTER SUPREME COURT INSTITUTE, SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2006 OVERVIEW 10 (2007), http://www.law.georgetown.edu/sci/ documents/GULCSupCtInstituteFinalReportOT2006_29June07.pdf. For cases argued during the October Term 2007, see Supreme Court of the United States Granted & Noted Case List (October Term 2007) at 13, http://www.supremecourtus.gov/orders/07grantednotedlist.pdf. For cases argued during the October Term 2008, see Supreme Court of the United States Granted & Noted Case List (October Term 2008) at 11, http://www.supremecourtus.gov/orders/08grantednotedlist.pdf. 17. Adam Liptak, Rare Glimpse of Thomas, From Bench to Den, N.Y. TIMES, Apr. 13, 2009, at A11; Mark Sherman, Justice Thomas A Man of Very Few Words, SEATTLE TIMES, May 19, 2007, at A5; see supra note 15 and accompanying text; see also Posting of Kedar Bhatia to Daily Writ, http://dailywrit.com/2007/12/06/updated-oral-argument-statistics/ (Dec. 6, 2007). 18. Erwin Chemerinsky, Foreword: Justice Thomas and the First Amendment, First Amendment Center (Oct. 8, 2007), http://www.firstamendmentcenter.org/analysis.aspx?id=19158. Professor Chemerinsky writes mainly about Justice Thomas’ First Amendment jurisprudence, but he also argues that Justice Thomas “is ready and willing to refashion large areas of constitutional law.” Id. 19. See infra Part III and text accompanying footnotes 81–122. 614 FLORIDA LAW REVIEW [Vol. 61 Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court. Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary on issues related to— but not directly raised in—a case. Justice Thomas’ silence on the bench is more than a peculiarity; it allows him to announce new theories of the Constitution without vetting those theories in open court. This Note focuses on Justice Thomas because his silence is so unrelenting, his opinions are so far-reaching, and his position on the nation’s highest court is so influential. It argues that Justice Thomas should end his silence, both for his own benefit and for the Court’s.
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